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TMI Blog2007 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30-12-2006 passed by the Commissioner Central Excise, Lucknow filed as annexure No. 2 to the writ petition whereby the authority has imposed penalty and duty for evasion of excise duty. 4. A preliminary objection has been raised by the respondent regarding maintainability of this writ petition. 5. Learned counsel for the petitioner has contended that in spite of availability of statutory alternative remedy under the provision of Central Excise Act, 1944 (Section 35B), the petitioner can maintain this writ petition since the impugned order has been passed in violation of the mandatory provision of Section 11A(2A)(a) of the Act and in view of the decision of, the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 Supreme Court Cases 1. For the said purpose, he has placed reliance on paragraphs 14 and 15. Paragraphs 14 and 15 of the said decision are quoted hereunder :- "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision of the Hon'ble Supreme Court in the case of Anil Rai v. State of Bihar - (2001) 7 Supreme Court Cases 318 he contends when there is unexplained long interval between conclusion of argument and delivery of judgment it shakes the confidence of the people in the judicial system. He therefore, states that in the present case the judgment having been delivered after more than one year of the conclusion of arguments, it would be a sufficient ground to set aside the same. He has referred to paragraphs 2 and 4 of the decision which are quoted hereunder :- "2. The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of the Code of Criminal Procedure. It is submitted that such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is stated to be contrary to the maxim actus cariae neminem gravabit, that an act of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition requires to be dismissed with heavy costs on the aforesaid ground alone. 10. He further submits that in so far as the submission of learned counsel for the petitioner in interpreting that the provision of Section 11A (2A)(a) is concerned the same cannot be accepted inasmuch as the provision clearly pro vides that the duty shall be determined within a period of one year where it is possible to do so and therefore, the said section cannot be read to mean that the order passed after one year would become without jurisdiction. The submission of learned counsel for the petitioner that after conclusion of hearing the judgment was delivered after more than one year is disputed by the respondents to be factually incorrect and for the said purpose he has placed reliance on paragraph 5 of the short counter affidavit. The said paragraph is quoted hereunder :- "That the petitioner has also stated in paragraph 8 of the writ petition that the hearing was concluded on 26-12-2005 which is also factually incorrect. A bare perusal of the following events would show that the witnesses were cross-examined and even written submissions were submitted upto 11-10-2006. S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. This Court on 4th April, 2007 permitted the learned counsel for the respondent to seek instructions and fixed this matter on 6th April, 2007. After receiving instructions, on 6th April, 2007, learned counsel for the respondent raised a preliminary objection regarding maintainability of writ petition on the ground of availability of statutory alternative remedy. This Court permitted him to file a short counter affidavit and the matter was adjourned to 17th April, 2007. Admittedly, the Company filed an appeal through its Director, Smt. Anita Singh on 16th April, 2007 under Section 35B of the Act. Though the present writ petition has been filed by the Company through Sri M.S. Patel, Managing Director but it is not the case of the petitioner that the factum of filing of appeal on 16th April, 2007 by the Company through its Director Smt. Anita Singh was not within his knowledge. On 17th April, 2007, this matter came up before the Court and was adjourned for 25th April, 2007 permitting parties to exchange affidavits. On 25th April, 2007 a short counter affidavit was filed on behalf of the Union of India and matter was adjourned since learned counsel for the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 226 of the Constitution. Further we have to consider as to whether the conduct of the petitioner is such which warrant same deterrent order by this Court. 14. The impugned order has been passed by the authority concerned imposing excise duty and penalty to the tune of Rs. 320 crores upon the petitioner. He has taken all steps and at least from 16th April, 2007 and onwards he has simultaneously proceeded to pursue his remedies before the tribunal as well as this Court. The appeal being statutory, it was his right to file the same but so far as the writ petition is concerned, it is discretionary equitable jurisdiction of this Court. Under Article 226 of the Constitution when a citizen or a person approaches the High Court with the grievance that he has been wronged, the court will take step to protect his right by providing relief irrespective that whether wrong has been done by the State or an Authority which state under Article 12 of the Constitution provided the wrong has affected any legal or fundamental rights of such person. The right that is infringed may be under Part III of the Constitution or any other right which a law validly under may confer upon him. Exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated an proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redressal of the grievance by the petitioner………." 13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India, to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he has already availed statutory alternative remedy of appeal or not. This would have been possible only if the petitioner would have shown a clean conduct by informing this Court on his own that the statutory appeal has been filed by him. On the contrary the petitioner chose to remain silent on this issue and took his chance to pursue the court to exercise its discretion in his favour by considering the issue in different perspective though the relevant facts and circumstances have entirely changed. In our view this conduct of the petitioner is nothing but shows that he is guilty of approaching the court and pursuing discretionary remedy with unclean hands and not by showing a bona fide conduct. 19. At this stage, we also propose to consider the argument of learned counsel for the petitioner that since the impugned order is wholly without jurisdiction therefore, it should be treated to be an exception and he should not be relegated to pursue alternative remedy. In order to fortify his submission learned counsel for the petitioner has placed reliance on Section 11A(2A)(a) of the Act which provides that after issue of notice, the authority shall pass order within one year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia must approach the Court with clean hands. If he is guilty of making false statements or suppression of material facts or otherwise try to misrepresent before the Court, the discretionary jurisdiction should not be exercised in favour of such person even if it is found that he is otherwise entitled for relief. A person who seeks equity must do equity and come with clean hands. In R. Vishwanatha Pillai v. State of Kerala and others - 2004 (2) SCC 105 the Apex Court held "a person, who seeks equity, must come with clean hands. He, who comes to the court with false claims cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner." 22. A Division Bench of this Court in Special Appeal No. 1092 of 2006 Pramod Kumar Shukla v. State of UP. and others decided on 26-9-2006 has held :- "It is well settled legal position that a person invoking writ jurisdiction of this Court must come with clean hands and disclose all the necessary facts which are pertinent for the purpose of deciding the issue involved." 23. In Ram Saran v. IG of Police, CRPF and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice by promotion of good faith and prevent law from crafty invasion. No litigant has a right to unlimited draught on the courts time and public money in order to get his affairs settled in the manner as he wishes. Easy excess to justice should not be misused as a licence to approach the Court in whatever manner the litigant desire. To deter such litigants the court, while declining to entertain such writ petition should impose exemplary cost. It should be effective and be deterrent for the purpose and objective is sought to be imposed. 26. Learned counsel for the petitioner tried to pursue this Court that a heavy cost of excise duty to the tune of more than rupees three hundred crores was imposed upon the petitioner and therefore, the petitioner approached this Court for speedy remedy. The Court is not meant for tax evaders and should come to their rescue merely for the reason that the amount of tax demanded is very heavy. The attitude of the petitioner is more seriously condemnable since at no point of time during the course hearing before this Court he has shown remorse for his conduct in failing to appraise this Court that he is pursuing his statutory remedy before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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